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2019 DIGILAW 2123 (KAR)

Vaijayanti @ Vijayalaxmi v. Pralhad

2019-10-31

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The claimants being aggrieved by the Judgment dated 24.12.2012 passed in M.V.C.No.92 to 95 of 2009 on the file of the M.A.C.T. No. III, Bagalkot, have filed this appeal. 2. It is the case of the claimants before the Tribunal that on 26.05.2008, Keshwachar Gundachar Katti and his relatives were traveling in Maruti Van bearing No.KA04/ME6538 to Bangalore. When the said vehicle was proceeding on N.H.4 at Hiriyur Bye pass road, Chitradurga district, the said vehicle hit to the lorry bearing No.KA05/A-5499 and thereby accident took place. It is alleged that the driver of the lorry in a negligent manner suddenly applied the break due to which the accident occurred. Due to the impact, Keshwachar Gundachar Katti who was driving the Maruti Van died on the spot and other inmates sustained grievous injuries. The legal representative of Keshwachar Gundachar Katti filed MVC No.95/2009 and the other inmates injured also filed claim petitions in MVC Nos.92, 93, 96 and 97 of 2009. 3. The claimants have further stated that Keshwachar Gundachar Katti was a retired Income Tax Officer and getting pension of Rs. 15,000/- per month. He was also working as Commercial Tax Advisor cum share business and getting income of Rs.20,000/- p.m. Therefore, the claimants filed the claim petition against the owner and the insurer of the Maruti Van bearing No.KA04/ME6538. 4. Upon service of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed the written statement. Respondent No.1 has admitted that he is the owner of the Maruti van bearing No.KA04/ME6538. He has admitted that Keshwachar Gundachar Katti was driving the Maruti van and died on the spot. When the said vehicle met with accident, his vehicle was duly insured with respondent No.2 and the deceased Keshwachar Gundachar Katti was holding valid and effective licence to drive the said vehicle and therefore, respondent No.2 is liable to pay compensation. 5. Respondent No.2 filed the written statement wherein he has contended that all the claim petitions are false, frivolous and vexatious. He has denied the age, income and occupation of the deceased Keshwachar Gundachar Katti. He has also contended that the driver of the vehicle was not holding valid and effective driving licence. Hence, he is not liable to pay any compensation. 6. All the claim petitions were heard together and disposed of by common judgment. 7. He has denied the age, income and occupation of the deceased Keshwachar Gundachar Katti. He has also contended that the driver of the vehicle was not holding valid and effective driving licence. Hence, he is not liable to pay any compensation. 6. All the claim petitions were heard together and disposed of by common judgment. 7. On the basis of the pleadings of the parties, Tribunal framed the issues. In support of their claim petitions, in all 6 witnesses were examined as P.W.1 to 6 and got marked 119 documents as Ex.P-1 to Ex.P-119. Respondent No.2 produced Insurance Policy at Ex.R.-1. However, no oral evidence was adduced by the respondents. 8. The learned member of the Tribunal after hearing both parties dismissed the claim petition in MVC No.95/2009, while allowing the other claim petitions partly. The Tribunal has recorded a finding that the accident in question occurred due to the negligence on the part of the deceased himself and that he steps into the shoes of the owner of the vehicle and as such the LRs. of the deceased-driver of the vehicle are not entitled to maintain the claim petition. 9. We have heard the learned counsel for the parties. 10. The learned counsel for the claimants relying on the judgment of the Hon'ble Supreme Court in Civil Appeal No.9100/2018 between the National Insurance Co. Ltd. Vs. Ashalata Bhowmik and Others submitted that the Insurance Company may be directed to pay compensation at least to the extent of Rs.2,00,000/- as per the terms of the policy under which the risk of the owner cum driver is limited to an extent of Rs.2,00,000/-. 11. Per Contra, the learned counsel for the insurer supported the impugned Judgment. 12. It is not disputed that the accident in question occurred on 26.5.2008 due to the rash and negligent driving of the Maruti Van bearing No.KA04/ME 6538 which was being driven by Keshwachar Gundachar Katti, who suffered fatal injuries and died on the spot. It is also not disputed that in the criminal case after completion of investigation Hiriyur police filed an abated summary against the deceased for the offences punishable under Sections 279, 337 and 304A of IPC. Therefore, the entire negligence in causing the accident was held against the deceased Keshwachar Gundachar Katti who was the driver of the offending vehicle at the time of accident. 13. Therefore, the entire negligence in causing the accident was held against the deceased Keshwachar Gundachar Katti who was the driver of the offending vehicle at the time of accident. 13. The Tribunal while awarding the compensation to the injured claimants dismissed the claim petition filed by the legal representative of the deceased Keshwachar Gundachar Katti on the ground that the accident in question occurred due to rash and negligent driving of the vehicle by deceased. The tribunal has relied on the various judgments of the Hon'ble Apex Court. The tribunal has relied on the judgments in the case of Oriental Insurance Company Ltd. vs. Rajni Devi and Others, 2008 ACJ SC 1441, Oriental Insurance Company Ltd. vs. Prithvi Raj, AIR 2008 SC 1408 and Ningamma and Another vs. United India Insurance Co. Ltd. 2009 ACJ 2020 . 14. The Hon'ble Apex Court in the aforesaid judgment has laid down that the claim was not maintainable as there was no tortfeasor involved whether the legal representative of a person driving the vehicle after borrowing it from the owner meets with accident without involving any other vehicle would be entitled to claim compensation under Section 163A, it was held that the borrower steps into the shoes of the owner, the owner cannot himself be recipient of compensation, as liability to pay the same is on him. Further in the case of National Insurance Co. Ltd. vs. Laxmi Narain Dhut, AIR 2007 SC 1414 , the Hon'ble Apex court has held as follows:- "Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company. But it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1985 (in short the 'CP Act'). Before the Tribunal, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the consumer forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come in to the picture. Therefore, these are cases where there is no third party involved." 15. Before the Tribunal, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the consumer forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come in to the picture. Therefore, these are cases where there is no third party involved." 15. In view of the principles laid down by the Hon'ble Supreme Court in the aforementioned cases, it is crystal clear that the claimants who are the legal representative of the deceased Keshwachar Gundachar Katti cannot maintain a claim petition under Section 166 of the Motor Vehicles Act, for the reasons that the deceased himself steps into the shoes of respondent No.1-the owner of the vehicle and therefore, the legal representative of the deceased cannot be recipients of the compensation as the liability to pay compensation is on the deceased himself. Under these circumstances we find that the reasons recorded by the Tribunal are justified. 16. Learned counsel for the appellants relying on the judgment in the case of the National Insurance Co.Ltd. Vs. Ashalata Bhowmik and Others stated supra submitted that a sum was Rs.2,00,000/- may be awarded as per the terms of the policy under which the risk of the personal accident claim of the owner cum driver is limited to Rs.2,00,000/-. In the present case, the Insurance Policy is produced at Ex.R1, in which the limits of liability of the policy in case of death or bodily injury to third party is restricted to Rs.7,00,000/- and personal accident covered for owner-driver is Rs.2,00,000/-. However, in the present case, admittedly, the deceased Keshwachar Gundachar Katti is not the owner of the vehicle though he steps into the shoes of the owner. Therefore, claimants are not entitled to claim compensation of Rs.2,00,000/- under the personal accident claim which is available to the owner. 17. The Hon'ble Supreme Court in the case of Ningamma and Another vs. United India Insurance Co. Ltd. stated supra has observed in para 25 as follows:- "25. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in the case the claimant is able to make out a case under any provision of law. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in the case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court." 18. Therefore, the Hon'ble Apex Court observed that under Section 166 of the Motor Vehicles Act, held that the claimants are entitled for just compensation even if in the pleadings no specific claim was made. It is further observed that a party should not be deprived from getting just compensation in the case the claimant is able to make out a case under any provision of law. It is further observed that needless to say that M.V. Act is beneficial and welfare legislation. With such observation the Hon'ble Supreme Court remitted the matter to this Court to consider whether or not the claimants would be governed with the terms and condition of the Insurance Policy and whether or not the provisions of Section 147 of the Act would be applicable in the case and whether or not there was rash and negligent driving on the part of the deceased. This Court was required to consider these aspects. It is submitted that after remand of the said case, this Court considered the claim of the claimants in the said case and awarded compensation of Rs.50,000/- by invoking the provision of Section 140 of the Motor Vehicles Act. 19. This Court was required to consider these aspects. It is submitted that after remand of the said case, this Court considered the claim of the claimants in the said case and awarded compensation of Rs.50,000/- by invoking the provision of Section 140 of the Motor Vehicles Act. 19. We are of the considered opinion that, in the present case also, it is just to award compensation in a sum of Rs.50,000/- invoking the provision of Section 140 of the Motor Vehicles Act and the insurer has to be directed to pay such compensation to the claimants. Accordingly, we proceed to pass the following: ORDER: Appeal is allowed in part. The judgment dated 24.12.2012 passed in MVC No.95/2009 by the MACT III, Bagalkot, is hereby set aside. The claim petition filed u/s 166 of the Motor Vehicle Act is partly allowed. The appellants/claimants are awarded compensation in a sum of Rs.50,000/- with interest @ 6% p.a. from the date of petition till realisation. Respondent No.2-National Insurance Company Limited is directed to deposit the said compensation amount with interest before the Claims Tribunal within a period of four weeks.